____________________________________________________________
____________________________________________________________
Westamerica Bancorporation
and
Chemical Trust Company of California
Rights Agent
_______________________
Amended and Restated Rights Agreement
Dated as of March 23, 1995
____________________________________________________________
____________________________________________________________
TABLE OF CONTENTS
Section Page
1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Appointment of Rights Agent . . . . . . . . . . . . . . . . . . . . 4
3. Issue of Rights Certificates. . . . . . . . . . . . . . . . . . . . 4
4. Form of Rights Certificates . . . . . . . . . . . . . . . . . . . . 6
5. Countersignature and Registration . . . . . . . . . . . . . . . . . 7
6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7. Exercise of Rights; Purchase Price; Expiration Date of Rights . . . 8
8. Cancellation and Destruction of Rights Certificates . . . . . . . 10
9. Reservation and Availability of Common Stock. . . . . . . . . . . 11
10. Common Stock Record Date. . . . . . . . . . . . . . . . . . . . . 12
11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights . . . . . . . . . . . . . . . . . . . . . . . . 12
12. Certificate of Adjusted Purchase Price or Number of Shares. . . . 20
13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. . . . . . . . . . . . . . . . . . . . . . . . . . 21
14. Additional Covenants. . . . . . . . . . . . . . . . . . . . . . . 24
15. Fractional Rights and Fractional Shares . . . . . . . . . . . . . 24
16. Rights of Action. . . . . . . . . . . . . . . . . . . . . . . . . 26
17. Agreement of Rights Holders . . . . . . . . . . . . . . . . . . . 26
18. Rights Certificate Holder Not Deemed a Stockholder. . . . . . . . 27
19. Concerning the Rights Agent . . . . . . . . . . . . . . . . . . . 27
20. Merger or Consolidation or Change of Name of Rights Agent . . . . 28
21. Duties of Rights Agent. . . . . . . . . . . . . . . . . . . . . . 28
22. Change of Rights Agent. . . . . . . . . . . . . . . . . . . . . . 31
23. Issuance of New Rights Certificates . . . . . . . . . . . . . . . 32
24. Redemption, Termination and Exchange. . . . . . . . . . . . . . . 32
25. Notice of Certain Events. . . . . . . . . . . . . . . . . . . . . 35
26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
27. Supplements and Amendments. . . . . . . . . . . . . . . . . . . . 37
28. Determination and Actions by the Board of Directors, etc. . . . . 37
29. Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
30. Benefits of This Agreement. . . . . . . . . . . . . . . . . . . . 38
31. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
32. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 38
33. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
34. Descriptive Headings. . . . . . . . . . . . . . . . . . . . . . . 38
Exhibit A -- Form of Rights Certificate . . . . . . . . . . . . . . . A-1
Exhibit B -- Amended and Restated Summary of Rights to
Purchase Common Stock . . . . . . . . . . . . . . . . . . B-1
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amended and Restated Agreement, dated as of March 23, 1995,
between Westamerica Bancorporation, a California corporation (the
"Company"), and Chemical Trust Company of California (the "Rights
Agent").
W I T N E S S E T H:
WHEREAS, the Company and Bank of America, NT&SA (the "Original Rights
Agent") entered into a Rights Agreement dated as of December 18, 1986
(the "Original Rights Agreement") in connection with which the Company
authorized and declared a dividend distribution of one right for each
share of common stock, no par value, of the Company outstanding on
January 20, 1987 (the "Record Date") (as subsequently adjusted for the
stock split on May 15, 1987, "Common Stock"), and contemplates the
issuance of one right (subject to adjustment) for each share of Common
Stock issued between the Record Date and the earlier of the Distribution
Date and the Expiration Date (as such terms are hereafter defined), each
right representing the right to purchase one share of Common Stock (as
adjusted) upon the terms and subject to the conditions set forth in the
Original Rights Agreement (such rights, as their terms are hereinafter
amended, being hereinafter referred to as the "Rights"); and
WHEREAS, Section 27 of the Original Rights Agreement provides that
the Company and the Original Rights Agent may amend the Original Rights
Agreement without approval of any holders of Rights Certificates, prior
to the Distribution Date (as such term is defined in Section 3(a)), in
order to change or supplement the provisions thereunder as the Company
deems necessary and desirable; and
WHEREAS, the Original Rights Agreement was amended and restated on
September, 1989 by the Company and the Original Rights Agent (the
"Restated Rights Agreement"); and
WHEREAS, pursuant to an Appointment and Acceptance Agreement dated
May 25, 1992 between the Company and the Rights Agent, the Original
Rights Agent was replaced by the Rights Agent to act as rights agent in
accordance with the terms and conditions of the Restated Rights
Agreement; and
WHEREAS, Section 27 of the Restated Rights Agreement provides that
the Company and the Rights Agent may amend the Restated Rights Agreement
without approval of any holders of Rights Certificates, prior to the
Distribution Date (as such term is defined in Section 3(a)), in order to
change or supplement the provisions thereunder as the Company deems
necessary and desirable; and
WHEREAS, the Company deems it desirable to amend and supplement the
Restated Rights Agreement, in accordance with such section;
NOW, THEREFORE, the Restated Rights Agreement is hereby amended and
restated to read, from and after the date hereof, in its entirety as set
forth below:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term
is hereinafter defined) who or which, together with all
Affiliates (as such term is hereinafter defined) and Associates
(as such term is hereinafter defined) of such Person, without the
prior approval of the Company, shall be the Beneficial Owner (as
such term is hereinafter defined) of securities representing 15%
or more of the Voting Power (as such term is hereinafter defined)
or who was such a Beneficial Owner at any time after the date
hereof, whether or not such Person continues to be the Beneficial
Owner of securities representing 15% or more of the Voting Power,
provided, however, that in no event shall a Person who or which,
together with all Affiliates and Associates of such Person, is
the Beneficial Owner of less than 15% of the Company's
outstanding shares of Common Stock become an Acquiring Person
solely as a result of a reduction of the number of shares of
outstanding Common Stock, including repurchases of outstanding
shares of Common Stock by the Company, which reduction increases
the percentage of outstanding shares of Common Stock beneficially
owned by such Person, and provided further that Acquiring Person
shall not mean (i) any Person, not otherwise an Acquiring Person,
who has purchased all shares validly tendered pursuant to a
Permitted Offer (as such term is defined in Section 11(a)(ii))
made by such Person or (ii) the Company, any subsidiary of the
Company (as such term is hereinafter defined), any employee
benefit plan of the Company or any of its subsidiaries or any
entity holding securities of the Company organized, appointed or
established by the Company or any of its subsidiaries for or
pursuant to the terms of any such plan.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), as in effect on the date of this
Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right or obligation to
acquire (whether such right or obligation is
exercisable or effective immediately or only after the
passage of time) pursuant to any agreement, arrangement
or understanding (whether or not in writing) or upon
the exercise of conversion rights, exchange rights,
rights (other than these Rights), warrants or options,
or otherwise; provided, however, that a Person shall
not be deemed the "Beneficial Owner" of, or to
"beneficially own," securities tendered pursuant to a
tender or exchange offer made by such Person or any of
such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or
exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding (whether or not
in writing); provided, however, that a Person shall not
be deemed the "Beneficial Owner" of, or to
"beneficially own," any security under this clause (B)
if the agreement, arrangement or understanding to vote
such security (1) arises solely from a revocable proxy
given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with,
the applicable rules and regulations of the Exchange
Act and (2) is not also then reportable by such Person
on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or
Associate thereof) with which such Person or any of such
Person's Affiliates or Associates has any agreement,
arrangement or understanding (whether or not in writing)
(other than customary agreements with and between
underwriters and selling group members with respect to a
bona fide public offering of securities), or with which
such Person or any of such Person's Affiliates have
otherwise formed a group, for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as
described in clause (B) of subparagraph (ii) of this
paragraph (c)) or disposing of any securities of the
Company.
(d) "Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the
State of California are authorized or obligated by law or
executive order to close.
(e) "Close of business" on any given date shall mean
5:00 p.m., San Francisco, California time, on such date;
provided, however, that if such date is not a Business Day it
shall mean 5:00 p.m., San Francisco, California time, on the next
succeeding Business Day.
(f) "Common Stock" shall mean the Common Stock, no par
value, of the Company, except that "Common Stock" when used with
reference to stock issued by any Person other than the Company
shall mean the capital stock with the greatest aggregate voting
power, or the equity securities or other equity interest having
power to control or direct the management, of such Person or, if
such Person is a subsidiary of another Person, of the Person
which ultimately controls such first-mentioned Person and which
has issued and outstanding such capital stock, equity securities
or equity interests.
(g) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(h) "Stock Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that an
Acquiring Person has become such.
(i) A "subsidiary" of any Person shall mean any corporation
or other entity of which a majority of the voting power of the
voting equity securities or voting interests is owned, directly
or indirectly, by such Person, or which is otherwise controlled
by such Person.
(j) "Voting Power" shall mean the voting power of all
securities of the Company then outstanding generally entitled to
vote for the election of directors of the Company.
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common Stock) in accordance
with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint
such Co-Rights Agents as it may deem necessary or desirable. In the
event the Company appoints one or more Co-Rights Agents, the respective
duties of the Rights Agents and any Co-Rights Agents shall be as the
Company shall determine.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the Stock Acquisition Date or (ii) the
tenth day after the date of the commencement of, or first public
announcement of the intent of any Person (other than the Company, any
subsidiary of the Company, or any employee benefit plan of the Company
or any of its subsidiaries) to commence (which intention to commence
remains in effect for five Business Days after such announcement), a
tender or exchange offer which would result in such Person becoming an
Acquiring Person, unless such date is extended by the Board of
Director's of the Company (but no later than the Stock Acquisition Date)
(the earlier of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for Common Stock
registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be certificates
for Rights) and not by separate certificates, and (y) the Rights (and
the right to receive certificates therefor) will be transferable only in
connection with the transfer of the underlying shares of Common Stock.
As soon as practicable after the Distribution Date, the Rights Agent
will send by first-class, insured, postage prepaid mail, to each record
holder of the Common Stock as of the close of business on the
Distribution Date, at the address of such holder shown on the records of
the Company, a certificate for Rights, in substantially the form of
Exhibit A hereto (the "Rights Certificates"), evidencing one Right for
each share of Common Stock so held. As of and after the Distribution
Date, the Rights will be evidenced solely by such Rights Certificates.
With respect to certificates for the Common Stock outstanding as of
the date hereof, until the Distribution Date (or earlier redemption,
expiration or termination of the Rights), the Rights will be evidenced
by such certificates for the Common Stock and the registered holders of
the Common Stock shall also be the registered holders of the associated
Rights. Until the Distribution Date (or earlier redemption, expiration
or termination of the Rights), the surrender for transfer of any of the
certificates for the Common Stock outstanding on the date hereof shall
also constitute the transfer of the Rights associated with the Common
Stock represented by such certificate.
(b) Certificates issued for Common Stock (including, without
limitation, certificates issued upon transfer or exchange of Common
Stock) after the date hereof, but prior to the earlier of the
Distribution Date or the Expiration Date (as such term is hereinafter
defined), shall be deemed also to be certificates for Rights, and shall
have impressed, printed, stamped, written or otherwise affixed onto them
the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Amended and Restated
Rights Agreement between Westamerica Bancorporation and Chemical
Trust Company of California (the "Rights Agent") dated as of
March 23, 1995 (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which is on
file at the principal offices of Westamerica Bancorporation.
Under certain circumstances, as set forth in the Rights
Agreement, such Rights may be redeemed, may expire, or may be
evidenced by separate certificates and will no longer be
evidenced by this certificate. Westamerica Bancorporation will
mail to the holder of this certificate a copy of the Rights
Agreement without charge within five days after receipt of a
written request therefor. Under certain circumstances, Rights
issued to Acquiring Persons (as defined in the Rights Agreement)
or certain related persons and any subsequent holder of such
Rights may become null and void.
With respect to such certificates containing the foregoing legend, until
the Distribution Date (or earlier redemption, expiration or termination
of the Rights), the Rights associated with the Common Stock represented
by such certificates shall be evidenced by such certificates alone, and
the surrender for transfer of any of such certificates shall also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase
shares and of assignment to be printed on the reverse thereof) shall
each be substantially in the form set forth in Exhibit A hereto and may
have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of
Section 11 and Section 23 hereof, the Rights Certificates, whenever
distributed, shall be dated as of the Record Date, and on their face
shall entitle the holders thereof to purchase such number of shares of
Common Stock as shall be set forth therein at the price per share set
forth therein (the "Purchase Price"), but the number of such shares and
the Purchase Price shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) hereof
that represents Rights beneficially owned by an Acquiring Person or any
Associate or Affiliate thereof and any Rights Certificate issued at any
time upon the transfer of any Rights to such an Acquiring Person or any
Associate or Affiliate thereof or to any nominee of such Acquiring
Person, Associate or Affiliate, and any Rights Certificate issued
pursuant to Section 6 or Section 11 upon transfer, exchange, replacement
or adjustment of any other Rights Certificate referred to in this
sentence, shall contain the following legend:
The Rights represented by this Rights Certificate were issued to
a Person who was an Acquiring Person or an Affiliate or an
Associate of an Acquiring Person, as such terms are defined in
the Rights Agreement. This Rights Certificate and the Rights
represented hereby may become void under the circumstances
specified in Section 7(e) of the Rights Agreement.
The provisions of Section 7(e) of this Rights Agreement shall be
operative whether or not the foregoing legend is contained on any such
Rights Certificate.
Section 5. Countersignature and Registration. The Rights
Certificates shall be executed on behalf of the Company by its Chairman
of the Board, any Vice Chairman of the Board, any President or any Vice
President, either manually or by facsimile signature, and shall have
affixed thereto the Company's seal or a facsimile thereof which shall be
attested by the Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Rights Certificates
shall be countersigned by the Rights Agent, either manually or by
facsimile signature and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed
any of the Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and
delivery by the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent, and issued and delivered by the
Company with the same force and effect as though the person who signed
such Rights Certificates had not ceased to be such officer of the
Company; and any Rights Certificates may be signed on behalf of the
Company by any person who, at the actual date of the execution of such
Rights Certificate, shall be a proper officer of the Company to sign
such Rights Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause
to be kept, at its office designated for such purpose, books for
registration and transfer of the Rights Certificates issued hereunder.
Such books shall show the names and addresses of the respective holders
of the Rights Certificates, the number of Rights evidenced on its face
by each of the Rights Certificates and the date of each of the Rights
Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
Subject to the provisions of Section 15 hereof, at any time after the
close of business on the Distribution Date, and at or prior to the close
of business on the Expiration Date, any Rights Certificate or
Certificates may be transferred, split up, combined or exchanged for
another Rights Certificate or Rights Certificates, entitling the
registered holder to purchase a like number of shares of Common Stock as
the Rights Certificate or Rights Certificates surrendered then entitled
such holder to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Rights Certificate shall make such
request in writing delivered to the Rights Agent, and shall surrender
the Rights Certificate or Rights Certificates to be transferred, split
up, combined or exchanged at the principal office of the Rights Agent.
Thereupon the Rights Agent shall countersign and deliver to the Person
entitled thereto a Rights Certificate or Rights Certificates, as the
case may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer, split up, combination or exchange of
Rights Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Rights Certificate and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them,
and reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Rights Certificate if mutilated, the Company will
execute and deliver a new Rights Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered owner in lieu
of the Rights Certificates so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
(a) The registered holder of any Rights Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole
or in part at any time after the Distribution Date upon presentation of
the Rights Certificate, with the appropriate form of election to
purchase on the reverse side thereof duly executed, to the Rights Agent
at the principal office of the Rights Agent, together with payment of
the Purchase Price for each share of Common Stock (or such other number
of shares or other securities) as to which the Rights are exercised, at
or prior to the earliest of (i) the close of business on December 31,
1999 (the "Final Expiration Date"), or (ii) the time at which the Rights
are redeemed as provided in Section 24(a) hereof, (iii) the consummation
of a transaction contemplated by Section 13(f) hereof or (iv) the time
at which the Rights are exchanged as provided in Section 24(c) hereof
(such earliest time being herein referred to as the "Expiration Date").
Notwithstanding any other provision of this Agreement, any Person who
prior to the Distribution Date becomes and remains a record holder of
shares of Common Stock may exercise all of the rights of a registered
holder of a Rights Certificate with respect to the Rights associated
with such shares of Common Stock in accordance with and subject to the
provisions of this Agreement, including the provisions of Section 7(e)
hereof, as of the date such Person becomes a record holder of shares of
Common Stock.
(b) The Purchase Price for each share of Common Stock to be
purchased pursuant to the exercise of a Right shall initially be $65,
shall be subject to adjustment from time to time as provided in
Sections 11 and 13 hereof and shall be payable in lawful money of the
United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the appropriate form of election to purchase duly executed,
accompanied by payment of the Purchase Price for the shares (or other
securities or property) to be purchased and an amount equal to any
applicable transfer tax (as determined by the Rights Agent) in cash, or
by certified check or bank draft payable to the order of the Company,
the Rights Agent shall, subject to Section 21(k), thereupon promptly
(i) (A) requisition from any transfer agent of the shares of Common
Stock (or make available, if the Rights Agent is the transfer agent)
certificates for the number of shares of Common Stock to be purchased,
and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) if the Company, in its sole
discretion, shall have elected to deposit the shares of Common Stock
issuable upon exercise of the Rights hereunder into a depositary,
requisition from the depositary agent depositary receipts representing
such number of shares of Common Stock as are to be purchased (in which
case certificates for the shares of Common Stock represented by such
receipts shall be deposited by the transfer agent with the depositary
agent) and the Company will direct the depositary agent to comply with
such request, (ii) when appropriate, requisition from the Company the
amount of cash, if any, to be paid in lieu of issuance of fractional
shares in accordance with Section 15, (iii) promptly after receipt of
such certificates or depositary receipts, cause the same to be delivered
to or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be designated by
such holder and (iv) when appropriate, after receipt promptly deliver
such cash to or upon the order of the registered holder of such Rights
Certificate. In the event that the Company is obligated to issue other
securities of the Company, and/or distribute other property pursuant to
Section 11(a), the Company will make all arrangements necessary so that
such other securities and/or property are available for distribution by
the Rights Agent, if and when appropriate. In addition, in the case of
an exercise of the Rights by a holder pursuant to Section 11(a)(ii), the
Rights Agent shall return such Rights Certificate to the registered
holder thereof after imprinting, stamping or otherwise indicating
thereon that the rights represented by such Rights Certificate no longer
include the rights provided by Section 11(a)(ii) of the Rights Agreement
and if less than all the Rights represented by such Rights Certificate
were so exercised, the Rights Agent shall indicate on the Rights
Certificate the number of Rights represented thereby which continue to
include the rights provided by Section 11(a)(ii).
(d) In case the registered holder of any Rights Certificate shall
exercise (except pursuant to Section 11(a)(ii)) less than all the Rights
evidenced thereby, a new Rights Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the Rights Agent
and delivered to the registered holder of such Rights Certificate or to
his duly authorized assigns, subject to the provisions of Section 15
hereof.
(e) Notwithstanding anything in this Agreement to the contrary, if
there occurs any of the events set forth in Section 11(a)(ii) or Section
13(a) then any Rights that are or were on or after the earlier of the
Distribution Date or the Stock Acquisition Date beneficially owned by an
Acquiring Person or any Associate or Affiliate of an Acquiring Person
shall become null and void, without any further action, and any holder
of such Rights shall thereafter have no rights whatsoever with respect
to such Rights, whether under any provision of this Agreement or
otherwise.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake
any action with respect to a registered holder upon the occurrence of
any purported exercise as set forth in this Section 7 unless the
certificate contained in the appropriate form of election to purchase
set forth on the reverse side of the Rights Certificate surrendered for
such exercise shall have been properly completed and duly executed by
the registered holder thereof and the Company shall have been provided
with such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company
or any of its agents, be delivered to the Rights Agent for cancellation
or in cancelled form, or, if surrendered to the Rights Agent, shall be
cancelled by it, and no Rights Certificates shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and
retire, any other Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent
shall deliver all cancelled Rights Certificates to the Company, or
shall, at the written request of the Company, destroy such cancelled
Rights Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Reservation and Availability of Common Stock. The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Common Stock, or
any authorized and issued shares of Common Stock held in its treasury,
the number of shares of Common Stock that will be sufficient to permit
the exercise in full of all outstanding Rights and, after the occurrence
of an event specified in Sections 11 and 13, shall so reserve and keep
available a sufficient number of shares of Common Stock (and/or other
securities) which may be required to permit the exercise in full of the
Rights pursuant to this Agreement.
So long as the shares of Common Stock (and, after the occurrence of
an event specified in Sections 11 and 13, any other securities) issuable
upon the exercise of the Rights may be listed on any national securities
exchange, the Company shall use its best efforts to cause, from and
after such time as the Rights become exercisable, all shares (or other
securities) reserved for such issuance to be listed on such exchange
upon official notice of issuance upon such exercise.
The Company covenants and agrees that it will take all such action as
may be necessary to ensure that all shares of Common Stock and/or other
securities delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares or other securities
(subject to payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and nonassessable shares or
securities.
The Company further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the issuance or delivery of the
Rights Certificates or of any certificates for shares of Common Stock
and/or other securities upon the exercise of Rights. The Company shall
not, however, be required to pay any transfer tax which may be payable
in respect of any transfer or delivery of Rights Certificates to a
Person other than, or in respect of the issuance or delivery of the
shares of Common Stock and/or other securities in a name other than that
of, the registered holder of the Rights Certificates evidencing Rights
surrendered for exercise or to issue or deliver any certificates for
shares of Common Stock, and/or other securities in a name other than
that of the registered holder upon the exercise of any Rights until such
tax shall have been paid (any such tax being payable by the holder of
such Rights Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is due.
The Company shall use its best efforts to (i) file, as soon as
practicable following the Distribution Date, a registration statement on
an appropriate form under the Securities Act of 1933, as amended (the
"Act"), with respect to the securities purchasable upon exercise of the
Rights, (ii) cause such registration statement to become effective as
soon as practicable after such filing, and (iii) cause such registration
statement to remain effective (with a prospectus at all times meeting
the requirements of the Act and the rules and regulations thereunder)
until the expiration of the Rights. The Company will also take such
action as may be appropriate under the blue sky laws of the various
states.
Section 10. Common Stock Record Date. Each person in whose name any
certificate for shares of Common Stock (or other securities) is issued
upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the shares of Common Stock (or other
securities) represented thereby on, and such certificate shall be dated,
the date upon which the Rights Certificate evidencing such Rights was
duly presented and payment of the Purchase Price (and any applicable
transfer taxes) was made; provided, however, that if the date of such
presentation and payment is a date upon which the Common Stock (or other
securities) transfer books of the Company are closed, such Person shall
be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on which
the Common Stock (or other securities) transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby, the holder
of a Rights Certificate, as such, shall not be entitled to any rights of
a stockholder of the Company with respect to shares for which the Rights
shall be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of
any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights. The Purchase Price, the number of shares covered
by each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after
the date of this Agreement (A) declare a dividend on the Common
Stock payable in shares of Common Stock, (B) subdivide the
outstanding Common Stock, (C) combine the outstanding Common
Stock into a smaller number of shares or (D) issue any shares of
its capital stock in a reclassification of the Common Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation) the Purchase Price in effect at the time
of the record date for such dividend or of the effective date of
such subdivision, combination or reclassification, and the number
and kind of shares of capital stock issuable on such date, shall,
except as otherwise provided in this Section 11(a) and in Section
7(e), be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock and other
securities which, if such Right had been exercised immediately
prior to such date and at a time when the Common Stock transfer
books of the Company were open, the holder would have owned upon
such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification. If an
event occurs which would require an adjustment under both Section
11(a)(i) and Section 11(a)(ii), the adjustment provided for in
this Section 11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) Subject to Section 24(c) of this Agreement, in the
event that any Person (other than the Company, any subsidiary of
the Company, any employee benefit plan of the Company or any of
its subsidiaries or any entity holding securities of the Company
organized, appointed or established by the Company or any of its
subsidiaries for or pursuant to the terms of any such plan),
alone or together with its Affiliates and Associates, shall
become an Acquiring Person (except pursuant to a tender or
exchange offer for all outstanding shares of Common Stock at a
price and on terms determined by at least a majority of the
members of the Board of Directors who are not officers of the
Company to be both adequate and otherwise in the best interests
of the Company and its shareholders (other than the Person or an
Affiliate or Associate thereof on whose behalf the offer is being
made) (a "Permitted Offer")), then proper provision shall be made
so that each holder of a Right, except as provided in Section
7(e) hereof, shall, for a period of 60 days after the later of
the occurrence of any such event and the effective date of an
appropriate registration statement pursuant to Section 9, have a
right to receive, upon exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement
such number of shares of Common Stock of the Company as shall
equal the result obtained by (x) multiplying the then current
Purchase Price by the then number of shares of Common Stock for
which a Right is then exercisable and (y) dividing that product
by 50% of the current market price per one share of Common Stock
(determined pursuant to Section 11(d)) on the date of the
occurrence of the event set forth in this subparagraph (ii) (such
number of shares being referred to as the "number of Adjustment
Shares"); provided, however, that if the transaction that would
otherwise give rise to the foregoing adjustment is also subject
to the provisions of Section 13 hereof, then only the provisions
of Section 13 hereof shall apply and no adjustment shall be made
pursuant to this section 11(a)(ii).
(iii) In the event that there shall not be sufficient
treasury shares or authorized but unissued shares of Common Stock
to permit the exercise in full of the Rights in accordance with
the foregoing subparagraph (ii) and the Rights become so
exercisable, notwithstanding any other provision of this
Agreement, to the extent necessary and permitted by applicable
law and any agreements in effect on the date hereof to which it
is a party, each Right shall thereafter represent the right to
receive, upon exercise thereof at the then current Purchase Price
in accordance with the terms of this Agreement, a number of
shares, or units of shares, of (x) Common Stock (up to the
maximum number of shares of Common Stock which may permissibly be
issued using the allocation procedure specified in the second
sentence of Section 11(k)) and (y) preferred stock (or other
equity securities) of the Company equal in the aggregate to the
number of Adjustment Shares where the Board of Directors of the
Company shall have deemed such shares or units, other than the
shares of Common Stock, to have at least the same economic value
and voting rights as the Common Stock (a "common stock
equivalent"); provided, however, if there are unavailable
sufficient shares (or fractions of shares) of Common Stock and/or
common stock equivalents, then the Company shall take all such
action as may be necessary to authorize additional shares of
Common Stock or common stock equivalents for issuance upon
exercise of the Rights, including the calling of a meeting of
shareholders; and provided, further, that the Company shall issue
no common stock equivalent upon exercise of the Rights until the
Company has first issued all authorized and unreserved shares of
Common Stock; and provided, further, that if the Company is
unable to cause sufficient shares of Common Stock and/or common
stock equivalents to be available for issuance upon exercise in
full of the Rights, then each Right shall thereafter represent
the right to receive the Adjusted Number of Common Shares upon
exercise at the Adjusted Purchase Price (as such terms are
hereinafter defined). As used herein, the term Adjusted Number
of Common Shares shall be equal to that number of shares (or
fractions of shares) of Common Stock (and/or shares or units of
common stock equivalents) equal to the product of (x) the number
of Adjustment Shares and (y) a fraction, the numerator of which
is the number of shares of Common Stock (and/or shares or units
of common stock equivalents) available for issuance upon exercise
of the Rights and the denominator of which is the aggregate
number of Adjustment Shares otherwise issuable upon exercise in
full of all Rights (assuming there were sufficient shares of
Common Stock available) (such fraction being referred to as the
"Proration Factor"). The Adjusted Purchase Price shall mean the
product of the Purchase Price and the Proration Factor. The
Board of Directors may, but shall not be required to, establish
procedures to allocate the right to receive Common Stock and
common stock equivalents upon exercise of the Rights among
holders of Rights.
(b) If the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Common Stock entitling
them (for a period expiring within 45 calendar days after such record
date) to subscribe for or purchase Common Stock (or shares having the
same or more favorable rights, privileges and preferences as the Common
Stock ("equivalent common stock")) or securities convertible into Common
Stock or equivalent common stock at a price per share of Common Stock or
per share of equivalent common stock (or having a conversion price per
share, if a security convertible into Common Stock or equivalent common
stock) less than the current market price (as defined in Section 11(d))
per share of Common Stock on such record date, the Purchase Price to be
in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on such record date, plus the number of shares of
Common Stock which the aggregate offering price of the total number of
shares of Common Stock and/or equivalent common stock to be offered
(and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price
and the denominator of which shall be the number of shares of Common
Stock outstanding on such record date, plus the number of additional
shares of Common Stock and/or equivalent common stock to be offered for
subscription or purchase (or into which the convertible securities so to
be offered are initially convertible). In case such subscription price
may be paid in a consideration part or all of which shall be in a form
other than cash, the value of such consideration shall be determined
reasonably and with good faith to the holders of Rights by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the Rights
Agent. Shares of Common Stock owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights or warrants are
not so issued, the Purchase Price shall be adjusted to be the Purchase
Price which would then be in effect if such record date had not been
fixed.
(c) If the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing corporation) of evidences of indebtedness,
cash (other than a regular quarterly cash dividend out of the earnings
or retained earnings of the Company), assets (other than a dividend
payable in Common Stock, but including any dividend payable in stock
other than Common Stock) or subscription rights or warrants (excluding
those referred to in Section 11(b)), the Purchase Price to be in effect
after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the current market price (as defined in
Section 11(d)) per share of Common Stock on such record date, less the
fair market value (as determined reasonably and with good faith to the
holders of Rights by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent) of the portion of the
cash, assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants distributable in respect of one
share of Common Stock and the denominator of which shall be the current
market price (as defined in Section 11(d)) per share of the Common
Stock. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so
made, the Purchase Price shall again be adjusted to be the Purchase
Price which would be in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than in
Section 11(a)(iii), the "current market price" per share of Common Stock
on any date shall be deemed to be the average of the daily closing
prices per share of such Common Stock for the 30 consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such
date; provided, however, that in the event that the current per share
market price of the Common Stock is determined during a period following
the announcement by the issuer of such Common Stock of (A) a dividend or
distribution on such Common Stock payable in shares of such Common Stock
or securities convertible into shares of such Common Stock or (B) any
subdivision, combination or reclassification of such Common Stock, and
prior to the expiration of 30 Trading Days after the ex-dividend date
for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each such
case, the "current market price" shall be properly adjusted to take into
account ex-dividend trading. The closing price for each day shall be
the last sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the shares of
Common Stock are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the shares of Common Stock are
listed or admitted to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by the
Nasdaq National Market, the Nasdaq Stock Market or such other system
then in use, or, if on any such date the shares of Common Stock are not
quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market
in the Common Stock selected by the Board of Directors of the Company.
If on any such date no market maker is making a market in the Common
Stock, the fair value of such shares on such date as determined
reasonably and with good faith by the Board of Directors of the Company
shall be used and shall be binding on the Rights Agent. The term
"Trading Day" shall mean a day on which the principal national
securities exchange on which the shares of Common Stock are listed or
admitted to trading is open for the transaction of business or, if the
shares of Common Stock are not listed or admitted to trading on any
national securities exchange, a Business Day. If the Common Stock is
not publicly held or not so listed or traded, "current market price" per
share shall mean the fair value per share determined reasonably and with
good faith to the holders of Rights by the Board of Directors of the
Company, whose determination shall be described in a statement filed
with the Rights Agent and shall be binding on the Rights Agent.
(e) Anything herein to the contrary notwithstanding, no adjustment
in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Purchase Price;
provided, however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest
ten-thousandth of a share of Common Stock or other share, as the case
may be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the
earlier of (i) one year from the date of the transaction which mandates
such adjustment or (ii) the Expiration Date.
(f) If as a result of any provision of Section 11(a), the holder of
any Right thereafter exercised shall become entitled to receive any
shares of capital stock of the Company other than Common Stock,
thereafter the number of such other shares so receivable upon exercise
of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares contained in Section 11(a) through
(c), inclusive, and the provisions of Sections 7, 9, 10, 13 and 15
hereof with respect to the Common Stock shall apply on like terms to any
such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right
to purchase, at the adjusted Purchase Price, the number of shares of
Common Stock purchasable from time to time hereunder upon exercise of
the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result
of the calculations made in Section 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase
Price, that number of shares of Common Stock (calculated to the nearest
ten-thousandth) obtained by (i) multiplying (x) the number of shares of
Common Stock covered by a Right immediately prior to this adjustment by
(y) the Purchase Price in effect immediately prior to such adjustment of
the Purchase Price and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in substitution for
any adjustment in the number of shares of Common Stock purchasable upon
the exercise of a Right. Each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable for the number
of shares of Common Stock for which a Right was exercisable immediately
prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the adjustment
to be made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least 10 days later than the date of the
public announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the
Company shall, as promptly as practicable, cause to be distributed to
holders of record of Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 15 hereof, the additional
Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement
for the Rights Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date specified in
the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of shares of Common Stock issuable upon the exercise of
the Rights, the Rights Certificates theretofore and thereafter issued
may continue to express the Purchase Price per share and the number of
shares which were expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, of the shares of
Common Stock or other securities issuable upon exercise of the Rights,
the Company shall take any corporate action which, in the opinion of its
counsel, may be necessary in order that the Company may validly and
legally issue fully paid and nonassessable shares of Common Stock or
other securities at such adjusted Purchase Price. If upon any exercise
of the Rights, a holder is to receive a combination of Common Stock and
common stock equivalents, a portion of the consideration paid upon such
exercise, equal to at least the then par value of a share of Common
Stock of the Company, shall be allocated as the payment for each share
of Common Stock of the Company so received.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date
for a specified event, the Company may elect to defer until the
occurrence of such event the issuing to the holder of any Right
exercised after such record date the shares of Common Stock and other
capital stock or securities of the Company, if any, issuable upon such
exercise over and above the shares of Common Stock and other capital
stock or securities of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a due
bill or other appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the event
requiring such adjustment.
(m) Anything to the contrary in this Section 11 notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price,
in addition to those adjustments expressly required by this Section 11,
as and to the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision of the
Common Stock, issuance wholly for cash of any shares of Common Stock at
less than the current market price, issuance wholly for cash of shares
of Common Stock or securities which by their terms are convertible into
or exchangeable for shares of Common Stock, stock dividends or issuance
of rights, options or warrants referred to hereinabove in this
Section 11, hereafter made by the Company to holders of its Common Stock
shall not be taxable to such stockholders.
(n) The exercise of Rights under Section 11(a)(ii) shall only result
in the loss of rights under Section 11(a)(ii) to the extent so exercised
and shall not otherwise affect the rights represented by the Rights
under this Rights Agreement, including the rights represented by Section
13.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 and
13 hereof, the Company shall (a) promptly prepare a certificate setting
forth such adjustment and a brief statement of the facts accounting for
such adjustment, (b) promptly file with the Rights Agent and with each
transfer agent for the Common Stock a copy of such certificate and
(c) mail a brief summary thereof to each holder of Rights in accordance
with Section 26 hereof. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, following the Stock Acquisition Date,
directly or indirectly, (w) the Company shall consolidate with, or merge
with and into, any other Person, (x) any Person shall consolidate with
the Company, or merge with and into the Company and the Company shall be
the continuing or surviving corporation of such merger, (y) any
subsidiary bank of the Company shall consolidate with, or merge with and
into any other Person or any Person shall consolidate with, or merge
with and into, any subsidiary bank of the Company (other than, in the
case of any transaction described in (w), (x) or (y), a merger or
consolidation which would result in all of the Voting Power represented
by the securities of the Company or subsidiary bank outstanding
immediately prior thereto continuing to represent, directly or
indirectly (either by remaining outstanding or by being converted into
securities of the surviving entity), all of the Voting Power represented
by the securities of the Company, subsidiary bank or such surviving
entity outstanding immediately after such merger or consolidation and
the holders of such securities not having changed as a result of such
merger or consolidation), or (z) the Company shall sell, mortgage or
otherwise transfer (or one or more of its subsidiaries shall sell,
mortgage or otherwise transfer), in one or more transactions, assets or
earnings power aggregating more than 50% of the assets or earning power
of the Company and its subsidiaries (taken as a whole) to any other
Person (other than to the Company or any of its subsidiaries), then, and
in each such case, proper provision shall be made so that (i) following
the Distribution Date, each holder of a Right (other than as provided in
Section 7(e) hereof) shall have the right to receive, upon the exercise
thereof at the then current Purchase Price in accordance with the terms
of this Agreement, such number of shares of freely tradeable Common
Stock of the Principal Party (as hereinafter defined), free and clear of
liens, rights of call or first refusal, encumbrances or other adverse
claims, as shall be equal to the result obtained by (1) multiplying the
then current Purchase Price by the number of shares of Common Stock for
which a Right is then exercisable and (2) dividing that product by 50%
of the current market price per share of the Common Stock of such
Principal Party (determined pursuant to Section 11(d) hereof) on the
date of consummation of such consolidation, merger, sale or transfer;
(ii) such Principal Party shall thereafter be liable for, and shall
assume, by virtue of such consolidation, merger, sale or transfer, all
the obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the provisions of
Section 11 hereof shall apply to such Principal Party; and (iv) such
Principal Party shall take such steps (including, but not limited to,
the reservation of a sufficient number of shares of its Common Stock in
accordance with Section 9 hereof) in connection with such consummation
as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to
its shares of Common Stock thereafter deliverable upon the exercise of
the Rights.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in (w) or (x) of
the first sentence of this Section 13, the Person that is the issuer
of any securities into which shares of Common Stock of the Company
are converted in such merger or consolidation, and if no securities
are so issued, the Person that is the other party to the merger or
consolidation;
(ii) in the case of any transaction described in (y) of the
first sentence of this Section 13, the surviving or resulting Person
in such merger or consolidation; and
(iii) in the case of any transaction described in (z) of the
first sentence in this Section 13, the Person that is the party
receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock of
such Person is not at such time and has not been continuously over the
preceding 12-month period registered under Section 12 of the Exchange
Act, and such Person is a direct or indirect subsidiary or Affiliate of
one or more other Persons, "Principal Party" shall refer to any such
other Person the Common Stock of which is and has been so registered,
unless the Common Stocks of two or more of such other Persons are and
have been so registered, in which case "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common Stock having the
greatest aggregate market value, (2) if the Common Stock of such Person
is and has not been so registered and such Person is a direct or
indirect subsidiary or Affiliate of one or more other Persons, the
Common Stocks of none of which are and have been so registered,
"Principal Party" shall refer to the senior such Person having
outstanding Common Stock, and (3) in case such Person is owned, directly
or indirectly, by a joint venture or partnership formed by two or more
Persons that are not owned, directly or indirectly, by the same Person,
the rules set forth in (1) and (2) above shall apply to each of the
chains of ownership having an interest in such joint venture or
partnership as if such party were a "Subsidiary" of both or all of such
joint venturers or partners and the Principal Parties in each such chain
shall bear the obligations set forth in this Section 13 in the same
ratio as their direct or indirect interests in such Person bear to the
total of such interests.
(c) The Company shall not consummate, nor will it permit any
subsidiary bank to consummate, any such consolidation, merger, sale or
transfer unless prior thereto the Company, the subsidiary bank, if
appropriate, and each Principal Party and each other Person who may
become a Principal Party as a result of such consolidation, merger, sale
or transfer shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in paragraphs
(a) and (b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger, sale or
transfer of assets mentioned in paragraph (a) of this Section 13, the
Principal Party at its own expense will:
(i) prepare and file a registration statement under the Act
with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, will use its best
efforts to cause such registration statement to become effective as
soon as practicable after such filing and will use its best efforts
to cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act) until
the Expiration Date;
(ii) use its best efforts to qualify or register the Rights and
the securities purchasable upon exercise of the Rights under the blue
sky laws of such jurisdictions as may be necessary or appropriate;
and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which
comply in all material respects with the requirements for
registration on Form 10 under the Exchange Act.
(d) The provisions of this Section 13 are intended to provide to the
holders of Rights a significant continuing equity interest in the
business of the Company following the consummation of any transaction of
the types described in paragraph (a) of this Section 13, and any attempt
by any Acquiring Person or Principal Party to avoid the provisions of
this Section 13 or to limit the impact thereof shall not be given any
effect.
(e) The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. The
Company will cause its subsidiary bank or banks to adhere to the terms
and provisions of this Agreement, to the extent applicable to such
subsidiary bank. The rights under this Section 13 shall be in addition
to the rights to exercise Rights and adjustments under Section 11(a)(ii)
and shall survive any exercise thereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a transaction described in
subparagraphs (w), (x) and (y) of Section 13(a) if (i) such transaction
is consummated with a Person or Persons who acquired shares of Common
Stock pursuant to a Permitted Offer (or a wholly owned subsidiary of any
such Person or Persons), (ii) the price per share of Common Stock
offered in such transaction is not less than the price per share of
Common Stock paid to all holders of Common Stock whose shares were
purchased pursuant to such Permitted Offer and (iii) the form of
consideration being offered to the remaining holders of Common Stock
pursuant to such transaction is the same as the form of consideration
paid pursuant to such Permitted Offer. Upon consummation of any such
transaction contemplated by this subsection (d), all Rights hereunder
shall expire.
Section 14. Additional Covenants.
(a) After the Stock Acquisition Date, the Company covenants and
agrees that it shall not (i) consolidate with, (ii) merge with or into,
or (iii) sell or transfer to, in one or more transactions, assets or
earning power aggregating more than 50% of the assets or earning power
of the Company and its subsidiaries taken as a whole, any other Person
if at the time of or after such consolidation, merger or sale there are
any charter or by-law provisions or any rights, warrants or other
instruments outstanding or any other action taken which would diminish
or otherwise eliminate the benefits intended to be afforded by the
Rights. The Company shall not consummate any such consolidation, merger
or sale unless prior thereto the Company and such other Person shall
have executed and delivered to the Rights Agent a supplemental agreement
evidencing compliance with this subsection.
(b) The Company covenants and agrees that, after the Stock
Acquisition Date, it will not, except as permitted by Section 24 hereof,
take any action the purpose or effect of which is to diminish or
otherwise eliminate the benefits intended to be afforded by the Rights.
Section 15. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights
or to distribute Rights Certificates which evidence fractional Rights.
In lieu of such fractional Rights, there shall be paid to the registered
holders of the Rights Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the purposes
of this Section 15(a), the current market value of a whole Right shall
be the closing price per Right of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have
been otherwise issuable. The closing price of the Rights for any day
shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or admitted
to trading, or if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the Nasdaq National Market, the
Nasdaq Stock Market or such other system then in use or, if on any such
date the Rights are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market
maker making a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date as
determined reasonably and with good faith to the holders of Rights by
the Board of Directors of the Company shall be used and shall be binding
on the Rights Agent.
(b) The Company shall not be required to issue fractions of shares
of Common Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Common Stock. In lieu
of fractional shares of Common Stock the Company may pay to the
registered holders of Right Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same
fraction of the current market value of shares of Common Stock. For
purposes of this Section 15(b), the current market value of one share of
Common Stock shall be the closing price of a share of Common Stock (as
determined pursuant to Section 11(d) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of one of the transactions or events
specified in Section 11 or Section 13 giving rise to the right to
receive common stock equivalents (other than Common Stock) or other
securities upon the exercise of a Right, the Company shall not be
required to issue fractions of shares or units of such common stock
equivalents or other securities upon exercise of the Rights or to
distribute certificates which evidence fractional shares of such common
stock equivalents or other securities. In lieu of fractional shares or
units of such common stock equivalents or other securities, the Company
may pay to the registered holders of Rights Certificates at the time
such Rights are exercised as herein provided an amount in cash equal to
the same fraction of the current market value of a share or unit of such
common stock equivalent or other securities. For purposes of this
Section 15(c), the current market value shall be determined in the
manner set forth in Section 11(d) hereof for the Trading Day immediately
prior to the date of such exercise and, if such common stock equivalent
is not traded, each such common stock equivalent shall have the value of
one share of Common Stock.
(d) Except as otherwise expressly provided herein, the holder of a
Right by the acceptance of the Rights expressly waives his right to
receive any fractional Rights or any fractional shares upon exercise of
a Right.
Section 16. Rights of Action. All rights of action in respect of
this Agreement are vested in the respective registered holders of the
Rights Certificates (and, prior to the Distribution Date, the registered
holders of the Common Stock); and any registered holder of any Rights
Certificate (or, prior to the Distribution Date, of the Common Stock),
without the consent of the Rights Agent or of the holder of any other
Rights Certificate (or, prior to the Distribution Date, of the Common
Stock), may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the
Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate in the manner
provided in such Rights Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of Rights would
not have an adequate remedy at law for any breach of this Agreement and
shall be entitled to specific performance of the obligations hereunder
and injunctive relief against actual or threatened violations of the
obligations hereunder of any Person subject to this Agreement. Holders
of Rights shall be entitled to recover the reasonable costs and
expenses, including attorneys' fees, incurred by them in any action to
enforce the provisions of this Agreement.
Section 17. Agreement of Rights Holders. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights
Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent, duly endorsed
or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the Person
in whose name a Rights Certificate (or, prior to the Distribution Date,
the associated Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Rights Certificates or the
associated Common Stock certificate made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent shall be affected by any notice to the
contrary.
Section 18. Rights Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Rights Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the shares
of Common Stock or any other securities of the Company which may at any
time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights Certificate, as such,
any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof), or to
receive dividends or subscription rights, or otherwise, until the Right
or Rights evidenced by such Rights Certificate shall have been exercised
in accordance with the provisions thereof.
Section 19. Concerning the Rights Agent. The Company agrees to pay
to the Rights Agent reasonable compensation for all services rendered by
it hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and disbursements and other
disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection
with the acceptance and administration of this Agreement, including the
costs and expenses of defending against any claim of liability arising
therefrom, directly or indirectly.
The Rights Agent shall be protected and shall incur no liability for
or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon
any Rights Certificate or certificate for Common Stock or for other
securities of the Company, instrument of assignment or transfer, power
of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper Person or Persons.
Section 20. Merger or Consolidation or Change of Name of Rights
Agent. Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Rights
Agent or any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section 22 hereof. In
case at the time such successor Rights Agent shall succeed to the agency
created by this Agreement, any of the Rights Certificates shall have
been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Rights Certificates
either in the name of the predecessor or in the name of the successor
Rights Agent; and in all such cases such Rights Certificates shall have
the full force provided in the Rights Certificates in this Agreement.
In case at any time the name of the Rights Agent shall be changed and
at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its changed name; and
in all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
Section 21. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company and the holders of
Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel selected by it
(who may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith and
in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter (including, without limitation, the identity of any Acquiring
Person) be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed
by the Chairman of the Board, any Vice Chairman of the Board, any
President, any Vice President, the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Company and delivered to
the Rights Agent; and such certificate shall be full authorization to
the Rights Agent for any action taken or suffered in good faith by it
under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Rights Certificates (except as to the fact that it has countersigned the
Rights Certificates) or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the
Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights Certificate (except
its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor shall it be responsible for
any adjustment required under the provisions of Section 11 or 13 hereof
or responsible for the manner, method or amount of any such adjustment
or the ascertaining of the existence of facts that would require any
such adjustment (except with respect to the exercise of Rights evidenced
by Rights Certificates after actual notice of any such adjustment); nor
shall it be responsible for any determination by the Board of Directors
of the Company of the current market value of the Rights or Common Stock
pursuant to the provisions of Section 15 hereof; nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock or other
securities to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Common Stock or other
securities will, when so issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as
may reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder and
certificates delivered pursuant to any provision hereof from the
Chairman of the Board, any Vice Chairman of the Board, any President,
any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company, and is authorized
to apply to such officers for advice or instructions in connection with
its duties, and it shall not be liable for any action taken or suffered
to be taken by it in good faith in accordance with instruction of any
such officer.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights
or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or contract with
or lend money to the Company or otherwise act as fully and freely as
though it were not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other capacity for
the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent shall not
be answerable or accountable for any act, omission, default, neglect or
misconduct of any such attorneys or agents or for any loss to the
Company or to the holders of the Rights resulting from any such act,
omission, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of
its rights if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the
form of assignment or form of election to purchase, as the case may be,
has either not been completed or indicates an affirmative response to
clause 1 and/or 2 thereof, the Rights Agent shall not take any further
action with respect to such requested exercise of transfer without first
consulting with the Company.
Section 22. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties
under this Agreement upon 30 days' notice in writing mailed to the
Company and to each transfer agent of the Common Stock by registered or
certified mail, and to holders of the Rights by first-class mail. The
Company may remove the Rights Agent or any successor Rights Agent upon
30 days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the
Common Stock by registered or certified mail, and to the holders of the
Rights by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after giving notice of
such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent
or by the holder of a Right (who shall, with such notice, submit his
Rights Certificate (if any) for inspection by the Company), then the
registered holder of any Rights may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall
be (a) a corporation organized and doing business under the laws of the
United States or of the State of California or the State of New York (or
of any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of
California or the State of New York), in good standing, having a
principal office in the State of California or the State of New York,
which is authorized under such laws to exercise corporate trust powers
and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50,000,000 or (b) an affiliate
of a corporation described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor
Rights Agent shall deliver and transfer to the successor Rights Agent
any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock, and mail a notice
thereof in writing to the registered holders of the Rights. Failure to
give any notice provided for in this Section 22, however, or any defect
therein, shall not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
Section 23. Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary,
the Company may, at its option, issue new Rights Certificates evidencing
Rights in such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price per share and the
number or kind or class of shares or other securities or property
purchasable under the Rights Certificates made in accordance with the
provisions of this Agreement. In addition, in connection with the
issuance or sale of shares of Common Stock following the Distribution
Date and prior to the redemption or expiration of the Rights, the
Company (a) shall, with respect to shares of Common Stock so issued or
sold pursuant to the exercise of stock options or otherwise under any
employee plan or arrangement, which plan or arrangement is existing as
of the Distribution Date, or upon the exercise, conversion or exchange
of any other securities issued by the Company on or prior to the
Distribution Date, and (b) may, in any other case, if deemed necessary
or appropriate by the Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) no such Rights
Certificates shall be issued if, and to the extent that, the Company
shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or
the Person to whom such Rights Certificates would be issued, and (ii) no
such Rights Certificates shall be issued if, and to the extent that
appropriate adjustment shall otherwise have been made in lieu of the
issuance thereof.
Section 24. Redemption, Termination and Exchange.
(a)(i) The Board of Directors of the Company may, at its option, at
any time prior to the earlier of (x) the time that any person becomes an
Acquiring Person without the prior consent of the Company or (y) 5:00
P.M., San Francisco, California time, on the Final Expiration Date,
redeem all but not less than all of the then outstanding Rights at a
redemption price of $.05 per Right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after
the date hereof (such redemption price being hereinafter referred to as
the "Redemption Price").
(ii) In addition, and notwithstanding the provisions of Section
24(a)(i), the Board of Directors of the Company may redeem all but not
less than all of the then outstanding Rights at the Redemption Price
following the occurrence of a Stock Acquisition Date but prior to any
event described in Section 13(a), either (x) following the occurrence of
an event set forth in, and the expiration of any period during which the
holder of Rights may exercise the rights under, Section 11(a)(ii) if and
for as long as the Acquiring Person is not thereafter the Beneficial
Owner of securities representing 15% or more of the outstanding shares
of the Voting Power, and at the time of redemption there are no other
persons who are Acquiring Persons or (y) in connection with any event
specified in Section 13(a) not involving an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or any other Person in
which such Acquiring Person, Affiliate or Associate has any interest, or
any other Person acting directly or indirectly on behalf of or in
association with any such Acquiring Person, Affiliate or Associate.
(b) In the case of a redemption permitted under Section 24(a)(i),
immediately upon the action of the Board of Directors of the Company
ordering the redemption of the Rights and without any further action and
without any notice, the right to exercise the Rights will terminate and
the only right thereafter of the holders of Rights shall be to receive
the Redemption Price. In the case of a redemption permitted only under
Section 24(a)(ii), the right to exercise the Rights will terminate and
represent only the right to receive the Redemption Price only after the
giving of notice of such redemption to the holder of such Rights if no
event set forth in Section 11(a)(ii) shall have occurred, upon the later
of ten Business Days following the giving of such notice or the
expiration of any period during which the rights under Section 11(a)(ii)
may be exercised. After the action of the Board of Directors ordering
any such redemption of the Rights, the Company shall promptly give
notice of such redemption to the Rights Agent and the holders of the
then outstanding Rights by mailing such notice to the Rights Agent and
to all such holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the Transfer Agent for the Common Stock. Any
notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice
of redemption will state the method by which the payment of the
Redemption Price will be made.
In the case of a redemption permitted under Section 24(a)(i) or (ii),
the Company may, at its option, discharge all of its obligations with
respect to the Rights by (i) issuing a press release announcing the
manner of redemption of the Rights and (ii) mailing payment of the
Redemption Price to the registered holders of the Rights at their last
addresses as they appear on the registry books of the Rights Agent, or,
prior to the Distribution Date, on the registry books of the Transfer
Agent of the Common Stock, and upon such action, all outstanding Rights
Certificates shall be null and void without any further action by the
Company.
(c) (i) Subject to the limitations of applicable law, the Board of
Directors of the Company may, at its option, at any time after any
Person becomes an Acquiring Person, exchange all or part of the then
outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 7(e) hereof) for
(A) shares of Common Stock at an exchange ratio of one share of Common
Stock per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof
(the "Exchange Shares") or (B) Substitute Consideration (as that term is
defined below). The Board of Directors may determine, in its sole
discretion, whether to deliver Exchange Shares or Substitute
Consideration. Notwithstanding the foregoing, the Board of Directors
shall not be empowered to effect such exchange at any time after any
Person (other than the Company, any subsidiary of the Company, any
employee benefit plan of the Company or any such subsidiary, or any
entity holding Common Stock for or pursuant to the terms of any such
plan), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the Common Stock then
outstanding.
(ii) In the event the Board of Directors shall determine to deliver
Substitute Consideration in exchange for Rights, the Company shall (1)
determine the value of the Exchange Shares (the "Exchange Value"), and
(2) with respect to each Right to be exchanged, make adequate provision
to substitute for Exchange Shares the following (the "Substitute
Consideration"): (v) cash, (w) Common Stock or common stock equivalents
(as that term is defined in Section 11(a)(iii) hereof), (x) debt
securities of the Company, (y) other assets, or (z) any combination of
the foregoing, having an aggregate value equal to the Exchange Value,
where such aggregate value has been determined by the Board of Directors
of the Company based upon the advice of a nationally recognized
investment banking firm selected by the Board of Directors of the
Company. For purposes of this Section 24(c), the value of a share of
Common Stock shall be the current market price (as determined pursuant
to Section 11(d) hereof) per share of Common Stock on the day that is
the later of (x) the first occurrence of an event described in Section
11(a)(ii) hereof and (y) the date on which the Company's right of
redemption pursuant to Section 24(a) expires; and the value of any
common stock equivalent shall be deemed to have the same value as the
Common Stock on such date.
(iii) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to this
Section 24(c), and without any further action and without any notice,
the right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive Exchange
Shares or Substitute Consideration for each Right exchanged by such
holder. The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or any defect in,
such notice shall not affect the validity of such exchange. The Company
promptly shall mail a notice of any such exchange to all of the holders
of such Rights at their last addresses as they appear upon the registry
books of the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the method
by which the exchange of Common Stock for Rights will be effected and,
in the event of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based on the
number of Rights (other than Rights which have become void pursuant to
the provisions of Section 7(e) hereof) held by each holder of Rights.
(iv) In the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but unissued to
permit any exchange of Rights as contemplated in accordance with this
Section 24(c), the Company shall take all such action as may be
necessary to authorize additional shares of Common Stock for issuance
upon exchange of the Rights.
(v) The Company shall not be required to issue fractions of shares
of Common Stock or to distribute certificates which evidence fractional
shares of Common Stock. In lieu of such fractional shares of Common
Stock, the Company shall pay to the registered holders of the Rights
Certificates with regard to which such fractional shares of Common Stock
would otherwise be issuable an amount in cash equal to the same fraction
of the current market value of a whole share of Common Stock. For the
purposes of this Section 24(c)(v), the current market value of a whole
share of Common Stock shall be the closing price of a share of Common
Stock (as determined pursuant to Section 11(d) hereof) for the Trading
Day immediately prior to the date of exchange pursuant to this
Section 24(c).
Section 25. Notice of Certain Events. In case the Company shall
propose (a) to pay any dividend payable in stock of any class to the
holders of Common Stock or to make any other distribution to the holders
of Common Stock (other than a regular quarterly cash dividend out of
earnings or retained earnings of the Company) or (b) to offer to the
holders of Common Stock rights or warrants to subscribe for or to
purchase any additional shares of Common Stock or shares of stock of any
class or any other securities, rights or options, or (c) to effect any
reclassification of its Common Stock (other than a reclassification
involving only the subdivision of outstanding shares of Common Stock),
or (d) to effect any consolidation or merger into or with, or to effect
any sale or other transfer (or to permit one or more of its subsidiaries
to effect any sale or other transfer), in one or more transactions, of
more than 50% of the assets or earning power of the Company and its
subsidiaries (taken as a whole) to, any other Person, or (e) to effect
the liquidation, dissolution or winding up of the Company, then, in each
such case, the Company shall give to each holder of a Rights
Certificate, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of
such stock dividend, distribution of rights or warrants, or the date on
which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of Common Stock, if
any such date is to be fixed, and such notice shall be so given in the
case of any action covered by clause (a) or (b) above at least 20 days
prior to the record date for determining holders of the shares of Common
Stock for purposes of such action, and in the case of any such other
action, at least 20 days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of
the shares of Common Stock whichever shall be the earlier.
In case any of the events set forth in Section 11(a)(ii) or 13(a) of
this Agreement shall occur, then, in any such case, the Company or the
Principal Party, as the case may be, shall as soon as practicable
thereafter give to each holder of a Rights Certificate, in accordance
with Section 26 hereof, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event to holders of
Rights under Section 11(a)(ii) or 13(a) hereof, as the case may be.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of
any Rights Certificate to or on the Company shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Rights Agent) as follows:
Westamerica Bancorporation
1108 5th Avenue
San Rafael, California 94901
Attention: David L. Payne
President and Chief Executive
Officer
Subject to the provisions of Section 22, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of
any Rights Certificate to or on the Rights Agent shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Company) as follows:
Chemical Trust Company of California
50 California Street, 10th Floor
San Francisco, California 94111
Attention: Michael B. Levinson
Notices or demands authorized by this Agreement to be given or made by
the Company or the Rights Agent to the holder of any Rights Certificate
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.
Section 27. Supplements and Amendments. The Company and the Rights
Agent may from time to time supplement or amend this Agreement without
approval of any holders of Right Certificates in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein,
(iii) prior to the Distribution Date, to change or supplement the
provisions hereunder which the Company may deem necessary or desirable
or (iv) following the Distribution Date, to change or supplement the
provisions hereunder in any manner which the Company may deem necessary
or desirable and which shall not adversely affect the interests of the
holders of Rights Certificates. Upon the delivery of a certificate from
an appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this Section
27, the Rights Agent shall execute such supplement or amendment unless
the Rights Agent shall have determined in good faith that such
supplement or amendment would adversely affect its interests under this
Agreement. Prior to the Distribution Date, the interests of the holders
of Rights shall be deemed coincident with the interests of the holders
of Common Stock.
Section 28. Determination and Actions by the Board of Directors,
etc. For all purposes of this Agreement, any calculation of the number
of shares of Common Stock outstanding at any particular time, including
for purposes of determining the particular percentage of such
outstanding shares of Common Stock or any other securities of which any
Person is the Beneficial Owner, shall be made in accordance with the
last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act as in effect on the date of this
Agreement. The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board of
Directors, or the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the
right and power to (i) interpret the provisions of this Agreement, and
(ii) make all determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to redeem or
not redeem the Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good faith, shall (x)
be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights Certificates and all other parties, and (y) not
subject the Board to any liability to the holders of the Rights
Certificates.
Section 29. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 30. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, the Common Stock) any
legal or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company,
the Rights Agent and the registered holders of the Rights Certificates
(and, prior to the Distribution Date, the Common Stock).
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way
be affected, impaired or invalidated.
Section 32. Governing Law. This Agreement, each Right and each
Rights Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of California and for all purposes
shall be governed by and construed in accordance with the laws of such
State applicable to contracts to be made and to be performed entirely
within such State.
Section 33. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
Attest: WESTAMERICA BANCORPORATION
[Seal]
______________________________ By __________________________
Name: James M. Barnes Name: David L. Payne
Title: Executive Vice President Title: President and Chief
& Chief Financial Officer Executive Officer
Attest: CHEMICAL TRUST COMPANY OF CALIFORNIA
[Seal]
_____________________________ By __________________________
Name: Name: Michael B. Levinson
Title: Title: Assistant Vice President
Exhibit A
[Form of Rights Certificate]
Certificate No R- _____________ Rights
NOT EXERCISABLE AFTER DECEMBER 31, 1999 OR EARLIER IF NOTICE
OF REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.05 PER RIGHT
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. [THE RIGHTS
REPRESENTED BY THIS RIGHTS CERTIFICATE WERE ISSUED TO A
PERSON WHO WAS AN ACQUIRING PERSON OR AN AFFILIATE OR AN
ASSOCIATE OF AN ACQUIRING PERSON, AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT. THIS RIGHTS CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY MAY BECOME VOID UNDER THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE RIGHTS
AGREEMENT.]
Rights Certificate
Westamerica Bancorporation
This certifies that ____________________________, or registered
assigns, is the registered owner of the number of ____ Rights set forth
above, each of which entitles the owner ____________ thereof, subject to
the terms, provisions and conditions of the Amended and Restated Rights
Agreement dated as of March 23, 1995 (the "Rights Agreement") between
Westamerica Bancorporation, a California corporation (the "Company"),
and Chemical Trust Company of California, (the "Rights Agent"), to
purchase from the Company at any time after the Distribution Date (as
such term is defined in the Rights Agreement) and prior to 5:00 P.M.
(San Francisco, California time) on December 31, 1999 at the office of
the Rights Agent designated for such purpose, one fully paid,
nonassessable share of Common Stock (the "Common Stock") of the Company,
at a purchase price of $65 per share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the
appropriate Form of Election to Purchase and Certificate duly executed.
The number of Rights evidenced by this Rights Certificate (and the
number of shares which may be purchased upon exercise thereof) set forth
above, and the Purchase Price set forth above, are the number and
Purchase Price as of March 23, 1995, based on the Common Stock as
constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the
number of shares of Common Stock or other securities which may be
purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the
happening of certain events.
This Rights Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties
and immunities hereunder of the Rights Agent, the Company and the
holders of the Rights Certificates. Copies of the Rights Agreement are
on file at the principal office of the Company and are also available
upon written request to the Company.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the office of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of shares of Common Stock as
the Rights evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase. If this Rights
Certificate shall be exercised (other than pursuant to Section 11(a)(ii)
of the Rights Agreement) in part, the holder shall be entitled to
receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised. If this
Rights Certificate shall be exercised in whole or in part pursuant to
Section 11(a)(ii) of the Rights Agreement, the holder shall be entitled
to receive this Rights Certificate duly marked to indicate that such
exercise has occurred as set forth in the Rights Agreement.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its
option at a redemption price of $.05 per Right. Subject to the
provisions of the Rights Agreement, the Company, at its option, may
elect to mail payment of the redemption price to the registered holder
of the Right at the time of redemption, in which event this certificate
may become void without any further action by the Company.
The Company is not obligated to issue fractional shares of Common
Stock upon the exercise of any Right or Rights evidenced hereby, but in
lieu thereof a cash payment may be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of
shares of Common Stock or of any other securities of the Company which
may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer upon
the holder hereof, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as provided in
the Rights Agreement), or to receive dividends or subscription rights,
or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights
Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of _________, 19__.
ATTEST: WESTAMERICA BANCORPORATION
_____________________________ By __________________________
Name: James M. Barnes Name: David L. Payne
Title: Executive Vice President Title: President and Chief
& Chief Financial Officer Executive Officer
Countersigned:
CHEMICAL TRUST COMPANY OF CALIFORNIA
_____________________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED _________________________________________ hereby
sells, assigns and transfers unto ____________________
____________________________________________________________
(Please print name and address of transferee)
____________________________________________________________
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
______________________ Attorney, to transfer the within Rights
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: _______________, 19___
____________________________
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ]
are not being sold, assigned and transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate of any
such Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: _______________, 19__ ___________________________
Signature
NOTICE
The signature to the foregoing Assignment must correspond to the name
as written upon the face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Rights Certificate pursuant to
Section 11(a)(ii) of the Rights Agreement.)
To WESTAMERICA BANCORPORATION:
The undersigned hereby irrevocably elects to exercise __________
Rights represented by this Rights Certificate to purchase the shares of
Common Stock (or such other securities of the Company) issuable upon the
exercise of the Rights and requests that certificates for such shares be
issued in the name of:
________________________________________________________________
(Please insert social security or other identifying number)
________________________________________________________________
(Please print name and address)
________________________________________________________________
The Rights Certificate indicating the balance, if any, of such Rights
which may still be exercised pursuant to Section 11(a)(ii) of the Rights
Agreement shall be returned to the undersigned unless such Person
requests that the Rights Certificate be registered in the name of and
delivered to:
________________________________________________________________
Please insert social security or other identifying number (complete only
if Rights Certificate is to be registered in a name other than the
undersigned)
________________________________________________________________
(Please print name and address)
________________________________________________________________
Dated: ____________, 19__.
__________________________________
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring
Person (as such terms are defined pursuant to the Rights Agreement);
(2) this Rights Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as
such terms are defined in the Rights Agreement);
(3) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: ____________, 19__.
__________________________________
Signature
NOTICE
The signature to the foregoing Election to Purchase must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Rights Certificate other than pursuant to
Section 11(a)(ii) of the Rights Agreement.)
To WESTAMERICA BANCORPORATION:
The undersigned hereby irrevocably elects to exercise __________
Rights represented by this Rights Certificate to purchase the shares of
Common Stock (or such other securities of the Company or any other
Person) issuable upon the exercise of the Rights and requests that
certificates for such shares be issued in the name of:
________________________________________________________________
(Please insert social security or other identifying number)
________________________________________________________________
(Please print name and address)
________________________________________________________________
The Rights Certificate indicating the balance, if any, of such Rights
which may still be exercised pursuant to Section 11(a)(ii) of the Rights
Agreement shall be returned to the undersigned unless such Person
requests that the Rights Certificate be registered in the name of and
delivered to:
________________________________________________________________
Please insert social security or other identifying number (complete only
if Rights Certificate is to be registered in a name other than the
undersigned)
________________________________________________________________
(Please print name and address)
________________________________________________________________
Dated: ____________, 19__.
__________________________________
Signature
Signature Guaranteed: CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring
Person (as such terms are defined pursuant to the Rights Agreement);
(2) this Rights Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as
such terms are defined in the Rights Agreement);
(3) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: ____________, 19__.
__________________________________
Signature
NOTICE
The signature to the foregoing Election to Purchase must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
Exhibit B
AMENDED AND RESTATED SUMMARY OF RIGHTS
TO PURCHASE COMMON STOCK
On December 18, 1986, the Board of Directors of Westamerica
Bancorporation (the "Company") declared a dividend distribution of one
Right for each outstanding share of common stock, no par value (the
"Common Stock"), of the Company to shareholders of record at the close
of business on January 20, 1987 (the "Record Date").
The Rights Agreement, which provides the description and terms of the
Rights, was previously amended and restated on September 28, 1989 and on
May 25, 1992 the current Rights Agent, Chemical Trust Company of
California, replaced the original Rights Agent. On March 23, 1995, the
Company and Chemical Trust Company of California as Rights Agent,
amended and restated the Rights Agreement (referred to herein, as
amended and restated, as the "Amended and Restated Rights Agreement").
A summary of the Amended and Restated Rights Agreement is set forth
below.
Except as set forth below, each Right, when exercisable, entitles the
registered holder to purchase from the Company one share of Common
Stock, at a price of $65 per share (the "Purchase Price"), subject to
adjustment. The Rights are not exercisable until the Distribution Date
(as defined below).
The Rights are currently attached to all Common Stock certificates
representing shares outstanding, and no separate Right Certificates will
be distributed until the earlier to occur of (i) a public announcement
that, without the prior consent of the Company, a Person or group of
affiliated or associated Persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of securities
having 15% or more of the voting power of all outstanding voting
securities of the Company, or (ii) ten days (unless such date is
extended by the Board of Directors) following the commencement of (or a
public announcement of an intention to make) a tender offer or exchange
offer which would result in any Person or group and related Persons
becoming an Acquiring Person (the earlier of such dates being called the
"Distribution Date"). Until the Distribution Date the Rights will be
evidenced, with respect to any of the Common Stock certificates
outstanding as of the Record Date, by such Common Stock certificate
together with this Amended and Restated Summary of Rights. The Amended
and Restated Rights Agreement provides that, until the Distribution
Date, the Rights will be transferred with and only with Common Stock
certificates.
From as soon as practicable after the Record Date and until the
Distribution Date (or earlier redemption or expiration of the Rights),
new Common Stock certificates issued after the Record Date upon transfer
or new issuance of the Common Stock will contain a notation
incorporating the Amended and Restated Rights Agreement by reference.
Until the Distribution Date (or earlier redemption or expiration of the
Rights), the surrender for transfer of any certificates for Common Stock
outstanding as of the Record Date (with or without this Amended and
Restated Summary of Rights attached) will also constitute the transfer
of the Rights associated with the Common Stock represented by such
certificate. As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Rights Certificates") will
be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date, and the separate Rights Certificates
alone will evidence the Rights.
The Rights will expire on the earliest of (i) December 31, 1999
(ii) consummation of a merger transaction with a Person or group who
acquired Common Stock pursuant to a Permitted Offer (as defined below),
and is offering in the merger the same price per share and form of
consideration paid in the Permitted Offer, or (iii) redemption by the
Company as described below.
The Purchase Price payable, and the number of shares of the Common
Stock or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination
or reclassification of the Common Stock, (ii) upon the grant to holders
of the Common Stock of certain rights or warrants to subscribe for
Common Stock, certain convertible securities or securities having the
same or more favorable rights, privileges and preferences as the Common
Stock at less than the current market price of the Common Stock or (iii)
upon the distribution to holders of the Common Stock of evidences of
indebtedness or assets (excluding regular quarterly cash dividends out
of earnings or retained earnings and dividends payable in Common Stock)
or of subscription rights or warrants (other than those referred to
above).
In the event that, after the first date of public announcement by the
Company or an Acquiring Person that an Acquiring Person has become such,
(i) the Company is acquired in a merger or other business combination
transaction in which the Common Stock is exchanged or changed, (ii) any
bank subsidiary of the Company is involved in a merger or other business
combination transaction or (iii) 50% or more of its assets or earning
power are sold (in one transaction or a series of transactions), proper
provision shall be made so that each holder of a Right (other than such
Acquiring Person) shall thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the Right, that
number of shares of common stock of the surviving or resulting Person in
the merger or business combination transaction or the Person acquiring
the greatest portion of the assets, as appropriate, or, in either case,
its publicly traded parent company or affiliate, which at the time of
such transaction would have a market value of two times the exercise
price of the Right (such right being called the "Merger Right").
In the event that a Person becomes the beneficial owner of securities
having 15% or more of the voting power of all then outstanding voting
securities of the Company (unless pursuant to a tender offer or exchange
offer for all outstanding shares of Common Stock at a price and on terms
determined by at least a majority of the members of the Board of
Directors who are not officers of the Company to be both adequate and
otherwise in the best interests of the Company and its stockholders (a
"Permitted Offer")), proper provision shall be made so that each holder
of a Right will for a 60-day period thereafter have the right to receive
upon exercise that number of shares of Common Stock having a market
value of two times the exercise price of the Right, to the extent
available, and then (after all authorized and unreserved shares of
Common Stock have been issued) a common stock equivalent (such as
Preferred Stock or another equity security with at least the same
economic value as the Common Stock) having a market value of two times
the exercise price of the Right, with Common Stock to the extent
available being issued first (such right being called the "Subscription
Right"). The holder of a Right will continue to have the Merger Right
whether or not such holder exercises the Subscription Right. Upon the
occurrence of any of the events giving rise to the exercisability of the
Merger Right or the Subscription Right, any Rights that are or were at
any time after the Distribution Date owned by an Acquiring Person shall
immediately become null and void.
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractions of shares will be issued and,
in lieu thereof, an adjustment in cash will be made based on the market
price of the Common Stock on the last trading date prior to the date of
exercise.
At any time prior to the earlier to occur of (i) a Person becoming an
Acquiring Person or (ii) the expiration of the Rights, the Company may
redeem the Rights in whole, but not in part, at a price of $.05 per
Right (the "Redemption Price"), which redemption shall be effective upon
the action of the Board of Directors. Additionally, the Company may
thereafter redeem the then outstanding Rights in whole, but not in part,
at the Redemption Price (i) provided that such redemption is incidental
to a merger or other business combination transaction or series of
transactions involving the Company but not involving an Acquiring Person
or certain related Persons or (ii) following an event giving rise to,
and the expiration of the exercise period for, the Subscription Right if
and for as long as an Acquiring Person beneficially owns securities
representing less than 15% of the voting power of the Company's voting
securities and at the time of redemption there are no other persons who
are Acquiring Persons. The redemption of Rights described in the
preceding sentence shall be effective only as of such time when the
Subscription Right is not exercisable, and in any event, only after 10
Business Days' prior notice.
Subject to applicable law, the Board of Directors, at its option, may
at any time after a Person becomes an Acquiring Person (but not after
the acquisition by such Person of 50% or more of the outstanding Common
Stock), exchange all or part of the then outstanding and exercisable
rights (except for Rights which have become void) for shares of Common
Stock equivalent to one share of Common Stock per Right or,
alternatively, for substitute consideration consisting of cash,
securities of the Company or other assets (or any combination thereof).
Fractional shares of Common Stock will be issuable; however, the
Company may elect to distribute depositary receipts in lieu of such
fractional shares. In lieu of fractional shares an adjustment in cash
may be made based on the market price of the Common Stock on the last
trading date prior to the date of exercise.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends.
A copy of the Amended and Restated Rights Agreement has been filed
with the Securities and Exchange Commission as an Exhibit to a
Form 8-A/A Amendment to a Registration Statement on Form 8-A. A copy of
the Amended and Restated Rights Agreement is available free of charge
from the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by reference to
the Amended and Restated Rights Agreement, which is incorporated herein
by reference.